The Italian Code of Criminal Procedure
Critical Essays and English Translation
by Gialuz Mitja, Luparia Luca , Scarpa Federica
Twenty-five years after its entry into force, the latest version of the Italian Code of Criminal Procedure is translated into English. This work is the result of the joint effort of translators and legal experts,and is introduced by three essays as an aid to the comprehension of a normative text of utmost importance in the international scenario.
The volume is aimed at legal actors (judges, lawyers, court clerks,police forces, diplomacies, ministerial departments, legal translators) whose task is to apply the Code in cases of judicial cooperation among States, in criminal proceedings involving foreign accused persons and in legal counselling within the European Union.
In its own nature, the book is also designed for law scholars and students worldwide. Indeed, the Italian Code of Criminal Procedure is still considered a reference point for its technical quality and for the solutions adopted to transpose several rules of the Anglo-American accusatory model into a traditionally inquisitorial system of criminal justice.
That is why, not surprisingly, it is one of the most influential and studied legislations in comparative law.
Failure to comply with tax rules
1. If an act is subject to a tax by law, the failure to comply with tax provisions does not make the act inadmissible nor does it prevent its completion, without prejudice to the financial sanctions provided for by law.
Facts in issue
1. Facts concerning accusations, criminal liabilities and the determination of either the sentence or the security measure are facts in issue.
2. Facts on which the application of procedural rules depends are also facts in issue.
3. Facts concerning the civil liability resulting from an offence are also facts in issue if a civil party joins the criminal proceedings.
Moral freedom of the person during evidence gathering
1. Methods or techniques which may influence the freedom of self-determination or alter the capacity to recall and evaluate facts shall not be used, not even with the consent of the person concerned.
Evidence not regulated by law
1. If evidence not regulated by law is requested, the judge may introduce it if it is deemed suitable to determine the facts and does not compromise the moral freedom of the person. After hearing the parties on the methods for gathering evidence, the judge shall order the admission of evidence.
Right to evidence
1. Evidence shall be admitted upon request of a party. The judge shall decide without delay by issuing an order, excluding any evidence that is not allowed by law or manifestly superfluous or irrelevant.
2. The cases in which evidence shall be admitted ex officio are set by law.
3. Decisions concerning the admission of evidence may be revoked after hearing the parties.
Requirements of evidence in particular cases
1. In proceedings regarding one of the crimes referred to in Article 51, paragraph 3-bis, should a request be made for the examination of a witness or one of the persons referred to in Article 210 and should such persons have already provided statements during the special evidentiary hearing or at trial in the cross-examination with the person against whom the same statements will be used or have provided statements whose minutes have been gathered under Article 238, the examination shall be admitted only if it concerns facts or circumstances other than those included in the previous statements or if it is requested by the judge or a party by virtue of specific needs.
1-bis. The same provision shall apply when the case being prosecuted regards one of the offences provided for in Articles 600-bis, paragraph 1, 600-ter, 600-quater, even if it concerns the pornographic material referred to in Articles 600-quater.1, 600-quinquies, 609-bis, 609-ter, 609-quater, 609-quinquies and 609-octies of the Criminal Code, if the requested examination concerns a witness under the age of 16.
Unlawfully gathered evidence
1. Evidence gathered in violation of the prohibitions set by law shall not be used.
2. The exclusion of evidence may be declared also ex officio at any stage and instance of the proceedings.
Evaluation of evidence
1. The judge shall evaluate evidence specifying the results reached and the criteria adopted in the grounds of the judgment.
2. The existence of a fact cannot be inferred from circumstantial evidence unless such evidence is serious, precise and consistent.
3. The statements made by either the co-accused charged with the same offence or a person accused in joined proceedings according to Article 12 shall be corroborated by the other elements of evidence confirming their reliability.
4. The provision of paragraph 3 shall apply also to the statements made by a person accused of an offence that is joined to the one being prosecuted, in the case referred to in Article 371, paragraph 2, letter b).
Limits of evidence set by civil laws
1. In criminal proceedings the limits of evidence set by civil laws are not observed, except for those regarding family status and citizenship.
MEANS OF EVIDENCE
Object and limits of testimony
1. The witness shall be examined on the facts constituting the object of evidence. He shall not testify on the morality of the accused, unless such testimony concerns specific facts that may be suitable for qualifying his personality in connection with the offence and his social dangerousness.
2. The examination may be also extended to the relations of kinship or interests that exist between the witness and the parties or other witnesses and to circumstances that need to be ascertained to assess their reliability. The testimony on the facts that may be useful in defining the victim’s personality shall be admitted only if the criminal act must be evaluated in connection with the victim’s behaviour.
3. The witness shall be examined on specific facts. He shall not testify on public rumours nor give his personal opinions, unless they are an inseparable part of the testimony.
1. If a witness reports information on facts he has been told of by other persons, upon request of a party, the judge shall order to summon these persons to testify.
2. The judge may order, also ex officio, the examination of the persons referred to in paragraph 1.
3. Failure to comply with the provisions of paragraph 1 results in the exclusion from the proceedings of the statements related to the facts of which the witness has been informed by other persons, unless the examination of these persons is impossible because they are dead, ill or untraceable.
4. Criminal police officials and officers shall not testify on the content of the statements gathered by witnesses following the procedures referred to in Articles 351 and 357, paragraph 2, letters a) and b). The provisions of paragraphs 1, 2 and 3 of this Article shall apply to the remaining cases.
5. The provisions of the previous paragraphs shall also apply if the witness is informed of the fact by means other than oral notification.
6. Witnesses shall not be examined on facts heard from the persons referred to in Articles 200 and 201 in relation to the circumstances provided for in the same Articles, unless the aforementioned persons have testified on the same facts or have disclosed them in some other way.
7. The testimony of persons who refuse or are not able to indicate the person or source that informed them of the facts under examination shall not be used.
Capacity to testify
1. Every person has the capacity to testify.
2. If the physical or mental suitability to testify needs to be assessed in order to evaluate the witness’s statements, the judge may order, also ex officio, the appropriate ascertainment through the means allowed by law.
3. The outcome of ascertainments that are ordered prior to a witness examination, under paragraph 2, shall not prevent the taking of testimony.
Incompatibility with the witness’s role
1. The following persons shall not testify:
a) persons co-accused of the same offence or accused in joined proceedings under Article 12, paragraph 1, letter a), unless a final judgment of dismissal, conviction or application of the punishment upon request of the parties under Article 444 has been delivered against them;
b) without prejudice to Article 64, paragraph 3, letter c), the persons accused in joined proceedings under Article 12, paragraph 1, letter c), or charged with a joined offence according to Article 371, paragraph 2, letter b), before a final judgment of dismissal, conviction or application of the punishment under Article 444 is delivered against them;
c) the person with civil liability for damages and the person with civil liability for financial penalties;
d) the persons who in the same proceedings perform or have performed the function of judge, Public Prosecutor or their assistants, as well as the lawyer who has performed defence investigations and the persons who have drafted the records on the statements and the information gathered as evidence under Article 391-ter.
Persons accused or tried in joined proceedings or for a joined offence undertaking the duty of witnesses
1. The person accused either in joined proceedings under Article 12 or in a joined offence under Article 371, paragraph 2, letter b) may be heard as witness if a final judgment of dismissal, conviction or application of the punishment under Article 444 has been delivered against him.
2. The person accused either in joined proceedings provided for in Article 12, paragraph 1, letter c) or in a joined offence provided for in Article 371, paragraph 2, letter b) may be heard as witness also in the case provided for in Article 64, paragraph 3, letter c).
3. In the cases provided for in paragraphs 1 and 2, the witness shall be assisted by a lawyer. If the witness has no retained lawyer, he shall be assisted by a court-appointed lawyer.
4. In the case provided for in paragraph 1, the witness shall not be obliged to testify on facts related to the offence he was convicted of at trial if he had denied his own liability or had not made any statement during the proceedings. In the case provided for in paragraph 2, the witness shall not be obliged to testify on facts concerning his own liability in the offence he is being or has been prosecuted for.
5. The statements made by the subjects referred to in this Article shall not be used against the person who has made them in the proceedings against him, in the revision proceedings and in any civil or administrative trial related to the offence that has been prosecuted and ascertained in the aforementioned judgments.
6. The provision of Article 192, paragraph 3 shall apply to the statements made by the persons undertaking the duty of witnesses under the provision of this Article.
Obligations of the witness
1. The witness is obliged to appear before the judge, follow the judicial indications regarding the procedural needs and answer truthfully to the questions addressed to him.
2. The witness shall not be obliged to testify on facts which may unravel his own criminal liability.
Right of abstention of next of kin
1. The next of kin of the accused shall not be obliged to testify, but they must in any case testify if they have submitted a report, complaint or petition or if they or one of their next of kin are the victims.
2. Under penalty of nullity, the judge shall inform the aforementioned persons of their right to abstention and ask them if they intend to exercise such right.
3. The provisions of paragraphs 1 and 2 shall also apply to whoever is related to the accused by adoption ties. They shall also apply to the following persons, exclusively in relation to the facts that either occurred or were learned by the accused person during marriage:
a) the cohabitee of the accused person, even if not a spouse;
b) the spouse separated from the accused person;
c) the person against whom a judgment annulling, dissolving or ceasing the civil effects of the marriage contracted with the accused person has been delivered.